33 Mass. App. Ct. 228 | Mass. App. Ct. | 1992
Section 123-14 of Blackstone’s zoning code (the “rate of development” by-law) forbids the building inspector to issue, to any one developer or for any single parcel of property, during any twelve-month period, building permits authorizing more than ten dwelling units, “exclusive of un
Advanced Development Concepts, Inc. (ADC), obtained planning board approval in July, 1986, of a definitive subdivision plan showing forty-seven residential units. The plan approval was made subject to a number of conditions to be satisfied prior to the building of any dwellings, including the widening and improvement of certain roads and the construction of a larger drainage system and detention basin and on-site sewage disposal systems. ADC did not challenge (see G. L. c. 41, § 8IBB) or formally seek to modify (see G. L. c. 41, §§ 81R & 81W) the conditions of approval. Instead, in October, 1986, it sought a rapid development special permit under § 123-14 for the construction of all forty-seven units within a twelve-month period. The planning board denied its application in February, 1987, for the reason that such a development would have numerous adverse impacts on the neighborhood and the town.
ADC immediately commenced this action in the Land Court, pursuant to G. L. c. 240, § 14A. It sought a declaration that the proper construction of the “unused authorizations” provision of § 123-14 entitled it to the full accumulated quota of building permits for each year that has elapsed since its subdivision plan was approved in 1986, even though it had not in fact applied for any permits in any year. ADC wanted the words “unused authorizations” to be construed to mean those building permits that it could theoretically have applied for and received in a given year, not those that it actually applied for, received, and then did not use. Such a construction would mean that by 1990 ADC would have amassed sufficient building permit entitlements to allow it to construct dwelling units on all of its subdivided lots.
The underlying reason for ADC’s position was revealed in an undated affidavit filed with the Land Court by ADC’s vice president, Marc A. Cote. Coté stated that ADC had not applied for the allowed ten permits per year during the period 1986-1990 because “a building permit will not issue until the roadway, drainage and other parts of the subdivision infrastructure are completed and the cost of installing that infrastructure is prohibitive for ten units.” No specific evidentiary support, however, was presented for the conclusory assertion regarding the purported prohibitiveness of compliance with the building permit conditions.
On ADC’s motion for summary judgment, the Land Court judge rejected ADC’s proffered construction and agreed with the town’s position. The town contended that the term “un
We affirm the judgment of the Land Court on the basis of the judge’s reasoning, with which we fully concur. The judge’s interpretation of the words “unused authorizations which have lapsed or have been withdrawn” was correct for several reasons, not the least of which was the judge’s proper deference to the reasonable construction that the relevant administrative body had given a regulation it was charged with implementing. See Zoning Bd. of Appeals of Greenfield v. Housing Appeals Comm., 15 Mass. App. Ct. 553, 560-561 (1983).
By looking to the common and approved usage of the words at issue, including dictionary definitions, the judge’s approach was consistent with ordinary principles of statutory construction. See Commonwealth v. S.S. Kresge, Co., 267 Mass. 145, 148 (1929); Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977); Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290-291 (1981); McMann v. State Ethics Commn., 32 Mass. App. Ct. 421, 425 (1992). His limitation of the scope of “unused authorizations” to building permits actually applied for and issued but then not used or withdrawn by the applicant was in accord with approved dictionary definitions and common usage.
The judge’s construction avoids the unacceptable result that is the necessary consequence of ADC’s position: to nullify the special permit provision of § 123-14. If a property owner need merely sit by and automatically accumulate permits for ten dwelling units per year, as ADC maintains,
While conceding the validity of this purpose, ADC nonetheless contends that the impact on public services and finances would be no different whether ten units are built each year or fifty units are built at the end of five years. This proposition is not merely implausible on its face (as well as unsupported by any facts in the record) but is directly belied by the town’s denial of the special permit by which ADC sought to do precisely that. ADC’s proposal was rejected on the very grounds, among others, that such rapid development would have unduly adverse effects on the neighborhood and the town with respect to traffic flow and safety, public utilities, town services, demographics, the environment, and fiscal balance. ADC’s claim that the judge’s interpretation violates the purpose of the zoning statute by allowing the prohibition, not just the control, of growth is equally devoid of factual support and is undercut by the existence of the presumptively
It is evident that the core of ADC’s plaint is the unap-pealed but (in its view) onerously conditioned subdivision approval. We are not unsympathetic regarding the practical burdens posed for developers by such requirements. There is much merit to ADC’s point that requiring the construction of a forty-seven lot subdivision. to be spread over five years, rather than permitting its completion in one, compels an inevitably less efficient and more costly allocation of resources. Nonetheless, there are procedures and techniques for directly addressing that problem — including a legal challenge to the imposition of the conditions, see G. L. c. 41, § 8IBB; compare Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171, 174-176 (1977); and negotiating with the authorities for a more manageable phased or sequential development of the required infrastructure, see G. L. c. 41, §§ 81R & 81W — none of which ADC appears to have elected. Procrustean distortion of the meaning of the rate of development by-law is not, however, a valid method of redressing such a grievance.
Judgment affirmed.
Section 123-14, adopted by the town in 1980 and originally denominated Section 2700, reads in its entirety:
“The Building Inspector shall not issue building permits authorizing more than ten (10) dwelling units (exclusive of unused authorizations which have lapsed or have been withdrawn) during any twelvemonth period within property which, as of July 1, 1979, was contiguous and in the same ownership [or in different ownerships each involving one (1) or more of the same principals] or to any one applicant [or set of applicants involving one (1) or more of the same principals] unless the Planning Board has granted a special permit for rapid development. Such special permit shall be granted only upon Planning Board determination that in addition to the special permit criteria of § 123-4C, such development also would serve a salient housing need, would be infeasible if limited to ten (10) units over twelve (12) months and would not overburden public services.”
The zoning code does not define “authorizations,” “unused authorizations” or the phrase “unused authorizations which have lapsed or have been withdrawn.”
In his findings of fact, the Superior Court judge noted that ADC “was aware of the limitations imposed on developers by Sec. [123-14] . . . prior to the time it purchased the . . . property” which was the subject of its subdivision plan. Both parties have stated that ADC appealed the September, 1988, judgment, but no such appeal appears in this court’s records.
See Webster’s Third New Inti. Dictionary 146-147 (1971). ADC contends that “authorizations” should include lots depicted within an approved subdivision. It is unclear whether this point was raised below; but in any event it is unsupported by any cited authority or reasoned argument (or by the sense and grammar of § 123-14, which contains no reference, express or implied, to subdivision regulations). It does not, therefore, con
See Webster’s Third New Inti. Dictionary 358 (1971) (cease), 748 (end), 801 (expire), 1272 (lapse), and 2359 (terminate); and 2 (abandon) and 2626 (withdraw).
ADC does not in fact establish anywhere in the record that it would have been entitled to any building permits even had it applied for the maximum allotment each year from 1986 on. It is axiomatic that a building permit cannot issue unless the applicant has demonstrated compliance with, or at least nonviolation of, the requirements of the zoning code and all other applicable laws and regulations. See Doliner v. Planning Bd. of Millis, 343 Mass. 1, 6 (1961); 780 Code Mass. Regs. § 114.1 (1980). ADC concedes that it could not have obtained any permits until it had complied with the conditions of its subdivision approval, as required by
